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§ 159.041 SITE PLAN REVIEW.
   (A)   Purpose. The purpose of these regulations is to promote orderly growth and development in the City of Noblesville and to insure that such development is done in a manner harmonious with surrounding properties and consistent with the general public welfare and with the policies in the Comprehensive Plan.
   (B)   Authority. The Technical Advisory Committee may, in accordance with the procedures and standards set forth in this section and other regulations applicable to the district in which the subject property is located, review and make written recommendation with regard to any application requiring a site plan.
   (C)   Site Plan Approval Required. Site plan review by the Technical Advisory Committee in accordance with this section shall be required in the following situations:
      (1)   In connection with any development or redevelopment for which this chapter requires a Conditional Use Permit, Variance, Improvement Location Permit, Subdivision Approval, and any Planned Development Approval.
      (2)   In connection with any redevelopment or minor modification consisting of 35% of the market value of a premises, except for the initial construction of a single- or two-family detached dwelling unit, or any structure accessory thereto.
      (3)   In connection with any development, redevelopment or minor modification in an Historic Preservation Overlay District.
   (D)   Procedure for Review and Recommendation.
      (1)   Pre-application Conference. Refer to § 159.046, Pre-filing Application Conference.
      (2)   Technical Advisory Committee Review.
         (a)   Application. Applications for a site plan review shall be filed in accordance with the requirements of § 159.040.
         (b)   Action by Department of Planning and Development. Within seven days after receipt by the Department of a properly completed application, the Director of Planning and Development or his or her designee shall forthwith transmit such application to the Technical Advisory Committee for hearing and review.
         (c)   Public Meeting. The Technical Advisory Committee shall hold a public meeting on the application in accordance with the requirements of § 159.040. The site plan, construction drawings (civil plans) and all other required documentation shall be reviewed for conformity with this chapter and all other applicable regulations.
         (d)   Action by Technical Advisory Committee. Each member of the Technical Advisory Committee shall provide a written report and recommendation either (i) endorsing the site plan as submitted; or (ii) endorsing it subject to specific modifications; or (iii) not endorsing the site plan. The endorsement of the Technical Advisory Committee shall then be forwarded to the appropriate administrative body for final determination.
         (e)   A pre-construction meeting shall be held within six months from the date of the Technical Advisory Committee meeting. Within 60 days of the pre-construction meeting, erosion control installation, earthmoving, and installation of infrastructure shall begin. Should the issuance of the ILP and construction activity not begin within the above noted timeframes, the TAC approvals shall lapse and become null and void thus requiring the re-submittal of said plans including new filing fees, project plans, and application(s) and other supplemental documents as required.
   (E)   Standards for Site Plan Review. The goals and objectives of the Comprehensive Plan or other applicable Noblesville planning documents shall be utilized in the review of site plan applications. In addition, the Technical Advisory Committee shall only recommend approval of the site plan submitted pursuant to this division (E) on the basis of specific written findings directed to one or more of the following standards:
      (1)   The arrangement of the structures on the site allow for the effective use of the proposed development. Furthermore, such arrangement is compatible with development on adjacent property and shall minimize potential impact on the provision of municipal services and utilities.
      (2)   The arrangement of open space and landscape improvements on the site create a desirable and functional environment for patrons, pedestrians, and occupants. The arrangement preserves unique natural resources where possible and respects desirable natural resources on adjacent sites.
      (3)   All circulation systems provide adequate and safe access to the site and are compatible with public circulation systems minimizing potentially dangerous traffic movements. Pedestrian and auto circulation are separated insofar as practical. Site curb cuts have been minimized.
      (4)   Proposed parking areas or lots are designed, located and screened to minimize adverse visual impacts on adjacent properties. Parking lot drainage does not adversely affect neighboring properties. Perimeter parking lot screening and internal landscaped islands have been utilized where feasible.
      (5)   Landscaping design shall create a logical transition to adjoining lots and developments, screen incompatible uses, and minimize the visual impact of parking lots on adjacent sites and roadways. Plant materials selected can withstand the microclimate of the city.
      (6)   Site illumination has been designed, located and installed so as to minimize adverse impacts to adjacent properties.
      (7)   Reasonable drainage or erosion solutions have been created which properly integrates the site fully and satisfactorily into the overall existing and planned drainage system serving the city.
   (F)   Additional Standards for Non-Residential Uses, Except in I-2 and I-3. The city requires design review of all non-residential building construction including new structures, additions to, alterations of, or modifications of any existing structure or building, which is located within a non-residential zoning district. The purpose of these design principles is to outline for the benefit of applicant the expectations of the city regarding design and style of development in all non-residential districts. These principles are intended to provide a general understanding of the criteria applied to the design review process. Each structure is considered unique and will be judged on the following design principles.
      (1)   Purpose.
         (a)   The architecture shall be of high quality, enduring, and promoting a sense of character for the building street wall.
   Building walls shall reflect high-quality architecture and complement the surrounding development(s). Building walls shall not be too simple or too ornate and shall:
            1.   Provide those qualities in the environment which bring value to the city;
            2.   Foster an attractiveness and functional utility of the city as a place to live and work;
            3.   Preserve the character and quality of our heritage by maintaining the integrity of those areas which have a discernible character;
            4.   Protect certain public investments in the local area;
            5.   Encourage a mix of uses and design;
            6.   Promote pedestrian accessibility and safety; and
            7.   Minimize visual clutter and blight.
         (b)   All new structures shall relate to the community's history, culture, and/or geography. Time, place, and culture, work to create endless variations on the themes of the city. Shape and form of a structure is accomplished through architectural design. The following massing requirements shall be incorporated in any proposed structure:
            1.   Building silhouette. Shall have similar pitch and scale to the roofline of adjacent structures.
            2.   Spacing between the buildings. Shall include setbacks or notches between the primary facades that frame the structure.
            3.   Setback from property line. Shall include setback area of adjacent structures.
            4.   Proportion of windows and bays, doorways. Shall include vertical and horizontal elements tied together in bands across the facade.
            5.   Proportion of facade. Shall be similar in area and height to width ratios.
            6.   Location and treatment of entryway. Shall create a visual commonality between structures.
            7.   Exterior materials. Shall include similar materials and treatment of adjacent structures
            8.   Building scale. Shall include height and configuration compatible with adjacent structures.
            9.   Landscaping. Shall tie the structure to the site and define spaces.
            10.   Shadow patterns that form decorative features. Shall include the light and dark surfaces from materials used and the projections from windows, bays, etc., and recesses, and setbacks that create visual breaks.
            11.   360° architecture (refer to definition, § 159.016).
      (2)   Design principles. The design of the building should be kept simple and materials and details should be consistent. Avoid a gaudy design.
         (a)   Avoid long, straight building shapes that are uninviting and do not contribute positively to the streetscape.
         (b)   Detail shall be an integral part of the building design and use consistently throughout.
         (c)   The exterior building design shall be coordinated on all elevations with regard to color, materials, architectural form, and detailing to achieve design harmony and continuity.
         (d)   Shadow patterns created by architectural elements such as overhangs, projections, reveals, and awnings are strongly encouraged.
         (e)   Buildings shall be broken into a series of volumes that lessen the volume and mass of the building by stepping back upper levels or integrating projections and recesses into the design
         (f)   Structures located toward the front of the property serve to visually narrow wide streets. Unifying the area with site amenities can lessen the impact of the automobile and encourage pedestrian use.
         (g)   Protection of adjacent neighborhoods, in particular the location of parking, driveways, outdoor lighting, trash bins, landscaping, signage, development bulk standards, fencing, and the general character of the surrounding development shall be considered when incorporating the architectural design and materials.
      (3)   Relationships (architectural).
         (a)   New buildings shall respond to the existing streetscape. The relative proportion of the building to its neighboring existing buildings and pedestrians shall be maintained or enhanced when new buildings are built or existing buildings are remodeled or altered.
         (b)   Buildings shall be designed to create interesting outdoor spatial relationships.
         (c)   Production design common to restaurants, hotels/motels, convenience markets, banks, etc. are strongly discouraged.
         (d)   The standard national franchise design is unacceptable and shall be retrofitted to compliment the local character and surrounding community. Architectural transplants from other communities are neither appropriate nor desirable.
         (e)   Building heights, configurations, color, texture, and materials shall be consistent among all buildings in a specific development and/or area.
         (f)   Building entries shall be accentuated with strong definition.
         (g)   Upgraded rear and side elevations, those exposed to public view, shall have a level of quality and detail consistent with the front elevation of the building.
         (h)   An identical design of at least one publicly exposed elevation of the building cannot be repeated within a series of three buildings on either side of the street. An identical building is one that an ordinary observer would find the differences between the two elevations to be imperceptible when viewing the elevations as a whole or unless instructed to detect the differences, an ordinary observer would conclude that the two elevations are the same.
         (i)   Building facades that are blank or windowless shall be prohibited.
         (j)   Rooflines of existing structures or adjacent properties shall be considered in the design to avoid clashes of materials and styles. The visual continuity of roofs and their contributing elements such as parapet walls, coping, cornices, etc., shall be maintained in the building development or redevelopment.
         (k)   The roofline shall be designed in conjunction with the mass and facade so that the building and its roof form a consistent composition.
         (l)   Roof penetrations shall be minimized by grouping plumbing vents and ducts together.
         (m)   Sloped roof shall be a minimum of 6/12 pitch.
      (4)   Relationships (site).
         (a)   Building design shall be fitted to the natural contours of the site. Natural features of the site, such as natural drainage ways, wooded or forested areas, rock formations, etc. shall be preserved.
         (b)   On wooded sites, buildings shall be carefully situated to take advantage of the shade and energy conservation provided by the trees.
         (c)   The impression of the buildings tucked into, rather than superimposed on, the natural landscape shall be created.
         (d)   The view of the building from the street and surrounding areas shall be as important as the view available to the building occupants.
         (e)   Buildings shall be located according to the natural characteristics of the site to avoid destroying sensitive natural areas.
         (f)   Buildings shall be designed to harmonize with the existing topography, thereby minimizing land disruption.
         (g)   Grading shall be held to a minimum and should complement natural landforms.
      (5)   Materials and colors.
         (a)   Building colors should be compatible with the adjacent buildings and neighborhood and shall reinforce the visual character of the area. The color scheme shall be coordinated with the neighboring buildings and the city as a whole. The intent is to unify the look of the buildings and/or area without resorting to a "rubber stamp" type of approach.
         (b)   The color of the building shall not be such that the building is competing for attention. Building colors shall be subdued and not "garish" and shall not in any way become a "signing" of the building or site
         (c)   Integral coloring of the building materials is encouraged. Differentiation of the color shall relate to the materials and/or the plane.
         (d)   The number of materials on the exterior building shall be limited to prevent visual overload.
         (e)   Use of warm, muted, earth-tones shall be used on the body of the building. More intense hues may be used as accent colors and for the highlighting of architectural elements.
         (f)   Relate the paint colors to the natural material, colors found on the building, such as brick, terra cotta, stone, tile, wood, or cast iron. Brick and stone shall be left natural in all zoning districts except those buildings located in the DT Downtown Zoning District that can be painted with approval from the Director of Planning or his or her designee.
         (g)   Colors for building walls and storefronts shall be compatible for the shops that occupy a multiple-storefront building. The use of different colors to identify individual shops within a single structure is prohibited, as it is visually disruptive and obscures the overall composition of the facade.
         (h)   Material samples and color samples for the buildings shall be required to be submitted with the building permit application.
         (i)   Maximum number of colors on a single building is three.
         (j)   No blank walls are permitted for all building elevations. All building elevations not facing a public right-of-way shall have a minimum of 20% of the walls having glazed areas or a glazed appearance.
         (k)   Storefronts shall consist of a maximum of 75% of the primary facade.
BUILDING MATERIALS
Permitted
Prohibited
Hand-laid clay brick
Concrete
Tile or masonry
Faux wood grain, vinyl and aluminum siding
Native stone
Integral color CMU - 50% maximum
Gypsum reinforced fiber concrete, PERMITTED for trim elements only
Wood-lap siding (horizontal configuration) smooth or rough-sawn finish (maximum 30%)
Stucco/EIFS (maximum 50%)
Split-faced block (maximum 20%)
Decorative split-faced block (maximum 40%)
Metal for beams, lintels, trim elements and ornamentation only
 
      (6)   Exterior walls (architecture).
         (a)   Exterior walls greater than 40 feet in length shall break any flat, monolithic facade with discernible architectural elements such as recessed windows and entrances, projections, arcades, balconies, cornices, bases, pilasters, columns or other architectural details or articulation combined with changes in materials to provide visual interest and pedestrian scale. Building designs, roof lines, or facade treatments that are monotonous shall be prohibited.
         (b)   Exterior wall materials shall be consistent horizontally.
         (c)   Exterior wall materials/architectural changes shall be provided with constructional logic.
         (d)   Brick or stone shall specify the pattern, color, type, and finish number of brick or stone to be used.
         (e)   All materials shall specify the pattern, color, type, and finish of materials to be used.
         (f)   The ratio between the width of the street corridor or internal drives, as measured between the opposing building facades, and the height of the walls of that corridor, measured as the foundation to eaves dimension, plays in important role in the human scale in the streetscape. The ratio shall generally be a width that is two to three times the height of the defining walls or edges.
         (g)   Building sites shall accommodate pedestrians and shall be centered on pedestrian traffic as opposed to vehicular traffic.
         (h)   Pedestrian walkways at intersections shall be clearly defined with contrasting surfaces.
         (i)   Major commercial developments shall include a system for internal pedestrian movement as well as being linked to city-wide systems.
         (j)   If concrete is used for the pedestrian areas, it shall be textured or patterned.
         (k)   For major developments, the building materials including color of the initial building shall continue the theme among the other buildings. Colors may change in hue only.
      (7)   Roofs.
         (a)   Roofs shall be compatible with the building's architecture including roof shape, color, and texture.
         (b)   Gable or hip roofs.
         (c)   Any pitched roof shall be a minimum of 6/12 to 12/12 slope.
            1.   Large overhangs shall be a minimum of 12 inches.
            2.   Large roof areas shall have more than one plane.
            3.   Roof pitches for overall porches shall be in keeping with the principal building having a minimum slope of 3/12.
            4.   Wood shakes, slate, concrete tiles, fiberglass shingles, asphalt composition shingles (artificial shingles).
            5.   Earth toned colors, dark hues (browns, blacks and maybe reds or grays).
         (d)   Parapet roofs shall be permitted only to conceal roof top mechanical equipment and shall be extended a minimum of one foot beyond the height of the rooftop mechanical equipment. All roof top mechanical equipment is to be hidden from public view.
         (e)   Gutters and downspouts should be internal. However, if exposed shall be painted to match the adjacent wall or roof materials.
         (f)   Roof-top screens used for hiding roof-top mechanical equipment or other accessory objects shall match the roof and/or shingle color on the building.
      (8)   Windows (all).
         (a)   Windows shall not span vertically more than one story and shall not span across building structural elements such as walls and mechanical spaces between the floors.
         (b)   Windows shall be separated by mullions, columns, piers or wall sections that are a minimum of seven inches wide.
         (c)   Windows shall not be closer than three feet to a building corner.
      (9)   Doors (all).
         (a)   Primary entrances shall be delineated having major architectural features so that they are clearly identified as entry points, fronting the primary access street, and are pedestrian accessible. A portico, arcade, awning, projection, recess, or similar architectural features shall be provided to shelter the primary entrance.
         (b)   Primary building entrances shall connect to a sidewalk with a pedestrian walkway.
         (c)   Doors shall not be recessed more than three feet behind the shop front windows and shall have a clear view and path to a 45° angle past the perpendicular from each side of the door.
         (d)   Roll-down security gates, door, and windows shall be prohibited within view of the public.
 
WINDOWS AND DOORS
   Permitted Materials (entrances)
Anodized aluminum, wood, clad wood, vinyl, or steel
Glass at the ground story shall be clear or lightly tinted with at least 90% light transmission. Specialty windows may utilize stained, opalescent, or glass block (maximum one per facade)
Screen frames shall match window frames
Doors shall be steel, wood, or wood clad
Translucent glass - 30% maximum
 
      (10)   Lighting.
         (a)   Design and intensity of lighting shall be architecturally integrated with the building style, material, and color.
         (b)   All parking lot and internal street lighting shall provide shield covers to direct the light in a downward manner.
         (c)   See §§ 159.140 through 159.148 and §§ 159.200 through 159.208 for additional requirements.
      (11)   Fencing.
         (a)   Fencing shall consist of wrought iron or brick or stone and be complemented with appropriate landscaping to break up the length and solidity of the fencing. This does not include fencing of outdoor storage areas in an I-1 zoning district as regulated by §§ 159.105 through 159.109.
         (b)   The maximum height of fencing shall be as provided in this chapter for said district in which the fence is constructed.
   (G)   Effect of Positive Recommendation.
      (1)   The recommendation of approval, or approval with modification of a site plan shall not authorize the establishment or extension of any use nor the development, construction, reconstruction, alteration, or moving of any building or structure, but shall merely authorize the preparation, filing, and processing of applications for any permits or approvals that may be required by the ordinances of the City of Noblesville.
      (2)   A copy of every approved site plan shall be filed with the Department of Planning and Development and the development of the site shall be in substantial conformity with such approved and filed plan.
   (H)   Limitations on Site Plan Approval. Subject to an extension of time granted by the Director of Planning and Development, no recommendation of approval, or approval with modification of a site plan shall be valid for a period longer than one year unless a Building Permit is issued and construction is actually begun within that period and is thereafter diligently pursued to completion or unless a Certificate of Occupancy is issued and a use commenced within that period.
   (I)   Adjustments to Site Plan During Development.
      (1)   Minimum Necessary Adjustment. Any adjustment approved pursuant to division (B) of this section shall be consistent with the intent and purpose of this chapter and the site plan as approved, shall be the minimum necessary to overcome the particular difficulty and shall not be approved if they would result in a violation of any standard or requirement of this chapter.
      (2)   Minor Adjustments. During the development of the site, the Director of Planning and Development, with the aid of the Technical Advisory Committee, may authorize adjustments to a site plan when such adjustments appear necessary in light of technical or engineering considerations first discovered during actual development. Such minor adjustments shall be limited to the following:
         (a)   Altering the location of any one structure or group of structures by not more than ten feet or one-fourth of the distance shown on the approved site plan between such structure or structures and any other structure or any vehicular circulation element or any boundary of the site plan, whichever is less.
         (b)   Altering the location of any circulation element by not more than ten feet or one-fourth of the distance shown on the approved site plan between such circulation element and any structure, whichever is less.
         (c)   Altering the location of any open space by not more than 20 feet.
         (d)   Altering any final grade by not more than 20% of the originally planned grade.
         (e)   Altering the location, by not more than 20 feet, or type, without reduction of total number, of landscaping elements.
      (3)   Major Adjustments. Any adjustment to a site plan not authorized by division (I)(2) of this section shall be considered to be a major adjustment and shall be granted only upon formal application for site plan review.
(Ord. 62-12-95, passed 1-22-96; Am. Ord. 36-08-02, passed 9-10-02; Am. Ord. 89-10-06, passed 11- 14-06; Am. Ord. 23-4-07, passed 5-15-07; Am. Ord. 56-11-07, passed 12-11-07; Am. Ord. 64-11-08, passed 12-9-08; Am. Ord. 17-5-09, passed 6-9-09; Am. Ord. 46-07-16, passed 8-9-16; Am. Ord. 12-04-17, passed 4-25-17; Am. Ord. 32-07-19, passed 7-23-19; Am. Ord. 44-10-23, passed 11-14-23)
§ 159.042 CONDITIONAL USE PERMITS.
   (A)   Purpose. Conditional uses are those uses that, because of their potential adverse impact upon the immediate neighborhood and the City, as a whole, require a greater degree of scrutiny and review of site characteristics and impacts to determine their suitability in a given location. As such, the determination of conditional uses as appropriate shall be contingent upon their meeting a set of specific standards and the weighing, in each case, of the public need and benefit against the local impact, giving effect to the proposals of the applicant for ameliorating adverse impacts through special site planning and development techniques and contributions to the provisions of public improvements, sites, right-of-way and services.
   (B)   Authority. The Board of Zoning Appeals may, in accordance with the procedures and standards set forth in this section and other regulations applicable to the district in which the subject property is located, approve by ordinance, uses listed as conditional uses within each zoning district.
   (C)   Parties Entitled to Seek Conditional Use. An application for a Conditional Use Permit may be filed with the Director of Planning and Development or his or her designee by the owner or lessee of the subject property or other person having a legal or equitable interest in the subject property.
   (D)   Procedure for Review and Decision.
      (1)   Application. Applications for a Conditional Use Permit shall be filed in accordance with the requirements of § 159.040.
      (2)   Action by Director of Planning and Development or his or her designee.
         (a)   Upon receipt of a properly completed application for a Conditional Use Permit, the Director of Planning and Development or his or her designee shall forthwith transmit to the Technical Advisory Committee for its review subject to § 159.041.
         (b)   The report and recommendations of the Technical Advisory Committee shall be submitted in writing from the Director to the Board of Zoning Appeals for its review.
      (3)   Public Hearing and Notice. The Board of Zoning Appeals shall hold a public hearing on the application in accordance with the requirements of § 159.041. Notice for the public hearing shall be performed in the manner prescribed by § 159.041.
      (4)   Action by Board of Zoning Appeals. The Board of Zoning Appeals shall take action in accordance with IC 36-7-4 et seq., with particular attention to the 900 series of said statute as the same may be amended.
      (5)   Judicial Review. Final decisions of the Board of Zoning Appeals are subject to judicial review as provided by applicable law. (See, e.g., IC 36-7-4-1600 et seq.).
   (E)   Standards for Conditional Uses. The Board of Zoning Appeals shall review the particular facts and circumstances of each proposed conditional use in terms of the following standards and shall find adequate evidence showing that such use at the proposed location:
      (1)   Is in fact a conditional use established within the specific zoning district involved;
      (2)   Will be harmonious with and in accordance with the general objectives or with any specific objective of the City's Comprehensive Plan and this chapter;
      (3)   Will be designed, constructed, operated, and maintained so as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity and will not change the essential character of the same area;
      (4)   Will not be hazardous or disturbing to existing neighboring uses;
      (5)   Will be served adequately by essential public facilities and services such as highways, streets, police and fire protection, drainage structures, refuse disposal, water and sewer, and schools; or that the persons or agencies responsible for the establishment of the proposed use shall be able to provide adequately any such services;
      (6)   Will not create excessive additional requirements at public expense for public facilities and services and will not be detrimental to the economic welfare of the community;
      (7)   Will not involve uses, activities, processes, materials, equipment and conditions of operation that will be detrimental to any persons, property, or the general welfare by reason of excessive production of traffic, noise, smoke, fumes, glare or odors;
      (8)   Will have vehicular approaches to the property which shall be so designed as not to create an interference with traffic on surrounding public thoroughfares; and
      (9)   Will not result in the destruction, loss, or damage of a natural, scenic, or historic feature of major importance.
   (F)   Supplementary Conditions And Safeguards. In granting any Conditional Use Permit, the Board of Zoning Appeals may prescribe conditions and limitations concerning use, construction, character, location, landscaping, screening, parking and other matters relating to the purposes and objectives of this chapter upon the premises benefited by a conditional use as may be necessary or appropriate to prevent or minimize adverse effects upon other property and improvements in the vicinity of the subject property or upon public facilities and services. However, such conditions shall not be used as a device to authorize as a conditional use that which is intended to be temporary in nature. Such conditions shall be expressly set forth in the ordinance granting the Conditional Use Permit. Any conditions prescribed by the Board of Zoning Appeals must be recorded by the applicant as a supplement to the deed for the property, in the Hamilton County Recorder's office. Violation of any such condition or limitation shall be a violation of this chapter and shall constitute grounds for revocation of the conditional use permit pursuant to §§ 159.240 through 159.248 and 159.999
   (G)   No Presumption of Approval. The listing of a conditional use within each zoning district does not constitute an assurance or presumption that such conditional use will be approved. Rather, each proposed conditional use shall be evaluated on an individual basis, in relation to its compliance with the standards and conditions set forth in § 159.041, and with the standards for the district in which it is located, in order to determine whether approval of the conditional use is appropriate at the particular location and in the particular manner proposed.
   (H)   Limitations on Conditional Uses.
      (1)   Subject to an extension of time granted by the Director of Planning and Development, no Conditional Use Permit shall be valid for a period longer than one year unless a building permit is issued and construction is actually begun within that period and is thereafter diligently pursued to completion, or unless a certificate of occupancy is issued and a use commenced within that period or unless a longer time is requested and granted by the Common Council.
      (2)   The approval of a proposed Conditional Use Permit by the Board of Zoning Appeals shall be deemed to authorize only that particular use at that particular location for which the conditional use was issued.
      (3)   Except when otherwise provided in the ordinance for approving a conditional use, a conditional use shall be deemed to relate to, and be for the benefit of the use and lot in question, rather than the owner or operator of such use or lot.
   (I)   Effect of Approval. The approval of a proposed Conditional Use Permit by the Board of Zoning Appeals shall not authorize the development, construction, reconstruction, alteration or moving of any building or structure, but shall merely authorize the preparation, filing and processing of applications for such permits or approvals as may be required by the regulations of the City, including but not limited to a building permit and a certificate of occupancy.
   (J)   Amendment to Approved Conditional Use Development Plans. The holder of an Improvement Location Permit for a conditional use may apply to the Board of Zoning Appeals at any time for an alteration, change, amendment, or extension of the Conditional Use of Development Plan upon which such permit was based.
      (1)   Upon receipt of such application, the Board of Zoning Appeals shall proceed as in the case of original applications for an Improvement Location Permit for a conditional use.
      (2)   In the event the Board of Zoning Appeals shall approve and order such applications or Development Plan changed, altered, amended, or extended, it shall notify the Director of Planning and Development who shall issue an amended Improvement Location Permit accordingly.
      (3)   Any alteration, change or amendment to a site plan (previously approved by the Board of Zoning Appeals through the conditional use process) and involving a new structure, combination of structures, or addition to an existing structure, may be approved by the Director of Planning and Development, who may issue an Improvement Location Permit without the requirement of a public hearing or Board of Zoning Appeals approval provided that:
         (a)   The net increase in floor area is less than 10,000 square feet but not to exceed 50% of the gross floor area of structures on the parcel;
         (b)   That the plans for the proposed use be submitted to and reviewed by the Technical Advisory Committee according to the schedule of filing deadlines established by the Director of Planning and Development;
         (c)   That the plans be revised to incorporate any recommendations of the Technical Advisory Committee that the Director of Planning and Development deems appropriate; and
         (d)   That the property of the proposed use does not fall within 100 feet of the property line of an existing residential land use or platted residential subdivision.
   (K)   Temporary Zoning Certificates for Staged Development. Whenever a Conditional Use Permit has been approved and is of such a nature that the applicant desires to complete the structures and improvements shown in the Conditional Use Development Plan by stages, the applicant may make application for a Temporary Certificate of Occupancy for any portion of the Plan that has been completed.
(Ord. 62-12-95, passed 1-22-96; Am. Ord. 56-11-07, passed 12-11-07; Am. Ord. 32-07-19, passed 7-23-19; Am. Ord. 44-10-23, passed 11-14-23)
§ 159.043 INTERPRETATIONS, APPEALS, AND VARIANCES.
   (A)   Interpretations.
      (1)   Purpose. The interpretation authority established by division (A)(4) of this section is intended to recognize that the provisions of this chapter, though detailed and extensive, cannot, as a practical matter, address every specific situation to which they may have to be applied. Many such situations can be readily addressed by an interpretation of the specific provisions of this chapter in light of the general and specific purposes for which those provisions have been enacted. Because the interpretation authority established is an administrative rather than a legislative authority, it is not intended to add to or change the essential content of this chapter but is intended only to allow authoritative application of that content to specific cases.
      (2)   Authority. The Director of Planning and Development, subject to the procedures, standards, and limitations of division (A)(4) of this section may, by written order, render interpretations of the provisions of this chapter and of any rule or regulation issued pursuant to it.
      (3)   Parties Entitled to Seek Interpretations. Applications for interpretations may be filed by any person having a legal or equitable interest in property that gives rise to the need for an interpretation; provided that interpretations shall not be sought by any person based solely on hypothetical circumstances or where the interpretation would have no effect other than as an advisory opinion.
      (4)   Procedure for Review and Decision.
         (a)   Application. Applications for interpretations of this chapter shall be filed in accordance with the requirements of § 159.040.
         (b)   Action on Application. Within ten working days following the receipt of a properly completed application for interpretation, the Director of Planning and Development shall inform the applicant in writing of his interpretation, stating the specific precedent, reasons, and analysis upon which the determination is based. The failure of the Director of Planning and Development to act within ten working days, or such further time to which the applicant may agree, shall be deemed to be a decision denying the application rendered on the day following such ten day period.
         (c)   Records. A record of all applications for interpretations shall be kept on file in the office of the Director of Planning and Development. At least once a year, the Director of Planning and Development shall make public a listing of his decisions, by address, regarding the applications for interpretation.
         (d)   Appeal. Appeals from interpretations rendered by the Director of Planning and Development may be taken to the Board of Zoning Appeals pursuant to division (B)(4) of this section.
      (5)   Standards for Interpretations. The following standards shall govern the Director of Planning and Development, and the Board of Zoning Appeals on appeals from the Director of Planning and Development, in issuing interpretations.
         (a)   Any use defined in § 159.016 shall be interpreted as therein defined;
         (b)   No interpretation shall permit any use in any district unless evidence shall be presented that demonstrates that it will comply with the general district regulations established for that particular district;
         (c)   No interpretation shall permit any use in a district unless such use is similar to other uses permitted in the district and is more similar to those uses than to uses permitted in a more restrictive district;
         (d)   If the proposed use is most similar to a use permitted only as a conditional use in the district in which it is proposed to be located, then any interpretation permitting such use shall be conditioned on the issuance of a conditional use permit for such use pursuant to division (A)(2) of this section; and
         (e)   No interpretation shall permit the establishment of any use that would be inconsistent with the statement of purpose of the district in question.
      (6)   Effect of Favorable Interpretations. No interpretation finding a particular use to be permitted or permitted as a conditional use in a particular district shall authorize the establishment of such use nor the development, construction, reconstruction, alteration, or moving of any building or structure, but shall merely authorize the preparation, filing, and processing of applications for any permits and approvals that may be required by the ordinances and ordinances of the City including, but not limited to, a building permit, a certificate of occupancy, subdivision approval, and site plan approval.
      (7)   Limitations on Interpretations.
         (a)   Subject to an extension of time granted by the Director of Planning and Development, no interpretation shall be valid for a period longer than 12 months from the date of issue.
         (b)   An interpretation finding a use to be permitted, or permitted as a conditional use in a particular district, shall be deemed to authorize only the particular use for which it was issued, and such permit shall not be deemed to authorize any allegedly similar use for which a separate use interpretation has not been issued.
   (B)   Appeals.
      (1)   Purpose.
         (a)   The appeal procedure is provided as a safeguard against arbitrary, ill-considered, or erroneous administrative decisions. It is intended to avoid the need for legal action by establishing local procedures to review and correct administrative errors. It is not, however, intended as a means to subvert the clear purposes, meanings, or intent of this chapter or the rightful authority of the Director of Planning and Development to enforce the requirements of this chapter. To these ends, the reviewing body should give all proper deference to the spirit and intent embodied in the language of this chapter and to the reasonable interpretations of that language by those charged with the administration of this chapter.
         (b)   The filing of an appeal shall stay all proceedings in furtherance of the action appealed from, unless the Director of Planning and Development certifies to the Board of Zoning Appeals, after the notice of appeal has been filed, that by reason of facts stated in the certificate, a stay would cause, in his opinion, imminent peril to life or property, in which case the proceedings shall not be stayed otherwise than by a restraining order that may be granted by the Board of Zoning Appeals or by a court of record, on application, of notice to the Director of Planning and Development and on due cause shown.
         (c)   The Board of Zoning Appeals may reverse or affirm, wholly or partly, or may modify the order or final decision as in its opinion ought to be made in the premises, and to that end has all the powers of the officer from whom the appeal is taken.
      (2)   Authority. The Board of Zoning Appeals shall hear and decide appeals from, and review orders, decisions, determinations, or the failure to act, of the Director of Planning and Development acting pursuant to his or her authority and duties under this chapter and to that end the Board of Zoning Appeals shall have the same powers and be subject to the same standards and limitations as the Director of Planning and Development with respect to any order, decision, or determination being appealed.
      (3)   Parties Entitled to Appeal. Appeals to the Board of Zoning Appeals concerning the interpretation or administration of this chapter may be taken by any persons aggrieved or by any officer or bureau of the legislative authority of the city affected by any decision of the Director of Planning and Development.
      (4)   Procedure.
         (a)   Application. An application for appeal to the Board of Zoning Appeals shall be filed not later than 45 days after the action being appealed and shall be in accordance with the requirements of § 159.040.
         (b)   Action by Director of Planning and Development. Upon receipt of a properly completed application for an appeal, the Director of Planning and Development shall forthwith transmit to the Board of Zoning Appeals the application together with all the papers constituting the record upon which the action appealed from was taken.
         (c)   Public Hearing and Notice. The Board of Zoning Appeals shall hold a public hearing on the application in accordance with the requirements of § 159.040. Notice for the public hearing shall be provided in the manner prescribed by § 159.040.
         (d)   Action by Board of Zoning Appeals. Within 30 days after the close of the public meeting, the Board of Zoning Appeals shall render a written decision on the appeal. Such decision may reverse, affirm, or modify, in whole or in part, the action appealed from and may include such order or determination as, in the opinion of the Board of Zoning Appeals, is proper to be made in the premises. The failure of the Board of Zoning Appeals to act within such 30 days, or such further time to which the applicant may agree, shall be deemed to be a decision denying the appeal.
         (e)   Review by Certiorari. Every decision by the Board of Zoning Appeals shall be subject to review by certiorari. Any person aggrieved by a decision of the Board of Zoning Appeals may present to the Circuit Court of Hamilton County a petition duly verified setting forth that such decision is illegal in whole or in part and specifying the grounds of the illegality. The petition shall be presented to the court within 30 days after the entry of the decision or order of the Board of Zoning Appeals.
      (5)   Right to Grant Variance in Deciding Appeals. In any case where the application for appeal is accompanied by an application for a variance in accordance with § 159.043(C)(4), the Board of Zoning Appeals shall notice, hear, decide to grant or deny, such variance in compliance with the provisions of § 159.043(C)(4).
      (6)   Conditions and Limitations on Rights Granted by Appeal. In any case where this chapter imposes conditions and limitations upon any right, any such right granted by the Board of Zoning Appeals on appeal shall be subject to such conditions and limitations in the same manner and to the same extent as if secured without the necessity of an appeal.
   (C)   Variances.
      (1)   Purpose. The variance procedures are intended to provide a narrowly circumscribed means by which relief may be granted from unforeseen particular applications of this chapter that create unnecessary hardships. When such hardships may be more appropriately remedied, if at all, pursuant to other provisions of this chapter, the variance procedure is inappropriate.
      (2)   Authority.
         (a)   The Board of Zoning Appeals may authorize upon application in specific cases such variances from the terms of this chapter as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this chapter would result in serious practical difficulty. No non-conforming use of neighboring lands, structures, or buildings in the same district and no permitted or non-conforming use of lands, structures, or buildings in other districts shall be considered grounds for issuance of a variance. Variances shall not be granted solely on the grounds of convenience or profit; however, where strict application of the provisions of this chapter would result in serious practical difficulty, convenience or profit may be considered as a relevant factor in the Board decision.
         (b)   The Board of Zoning Appeals may consider issuing a variance from the terms and provisions of the Flood Hazard (FH) District provided the structure for which a variance is requested existed at the time of the effective date of this chapter, and provided the applicant offers that the grant of the requested variance will not increase flood heights, create additional threats to public safety, cause additional public expense, create nuisances, cause fraud or victimization of the public or conflict with existing laws or ordinances.
         (c)   In addition, the Board of Zoning Appeals may consider land use variances in cases in which a proposed use for a property does not fall within the list of permitted or conditional uses for the zone district in which it is located.
      (3)   Parties Entitled to Seek Variance. An application for a variance may be filed with the Director of Planning and Development by the owner or lessee of the subject property or other person having a legal or equitable interest in the subject property.
      (4)   Procedure for Review and Decision.
         (a)   Application. Applications for a variance shall be filed in accordance with the requirements of § 159.040.
         (b)   Action by Director of Planning and Development.
            1.   Upon receipt of a properly completed application for a Conditional Use Permit Variance, the Director of Planning and Development shall forthwith transmit it to the Technical Advisory Committee for its review subject to § 159.041 if construction drawings of sufficient detail are provided.
            2.   The report and recommendations of the Technical Advisory Committee shall be submitted in writing from the Director to the Board of Zoning Appeals for its review if Technical Advisory Committee review is completed on a pending application.
         (c)   Public Hearing and Notice. The Board of Zoning Appeals shall hold a public hearing on the application in accordance with the requirements of § 159.040. Notice for the public hearing shall be provided in the manner prescribed by § 159.040.
         (d)   Action by Board of Zoning Appeals. The Board of Appeals shall take action in accordance with IC 36-7-4 et seq., with particular attention to the 900 series of said statute as the same may be amended.
         (e)   Review by Certiorari. Every decision by the Board of Zoning Appeals shall be subject to review by certiorari. Any person aggrieved by a decision of the Board of Zoning Appeals may present to the Circuit Court of Hamilton County a petition duly verified setting forth that such decision is illegal in whole or in part and specifying the grounds of the illegality. The petition shall be presented to the court within 30 days after the entry of the decision or order of the Board of Zoning Appeals.
      (5)   Findings of Fact for Variances.
         (a)   Findings of Fact.
            1.   Every application for a variance shall be subject to the findings of fact as set out in I.C. 36-7-4-918.5 et seq. A variance from the terms of this chapter shall not be granted unless the Board of Zoning Appeals makes specific written findings of fact based directly on the particular evidence presented in the application materials and at the hearing which support conclusions that all of the standards and conditions imposed by recommendation of the Director of Planning and Development and the Technical Advisory Committee have been met. A Development Standards Variance may be approved only upon a determination in writing that:
               A.   The approval will not be injurious to the public health, safety, morals, and general welfare of the community;
               B.   The use arid value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner; and
               C.   The strict application of the terms of the zoning ordinance will result in practical difficulties in the use of the property.
            2.   In addition to the findings of fact, the Board should consider the following factors when deliberating over a variance request:
               A.   Hardship. No variance shall be granted pursuant to this unless the applicant shall establish that carrying out the strict letter of the provision's of this chapter would create a particular hardship or practical difficulty. The hardship in the FH zoning district must be exceptional, unusual, and peculiar to the property involved. Mere economic or financial hardship alone is not exceptional. Inconvenience, aesthetic considerations, physical handicaps, personal preferences, or disagreement with the neighbors also does not qualify as an exceptional hardship as they can be resolved through other means without granting a variance, even if the alternative is more expensive. The need for a property owner to build elsewhere or put the property to a different use than originally intended does not constitute a hardship.
               B.   Unique physical condition. The subject lot is exceptional as compared to other lots subject to the same provision by reason of a unique physical condition, including presence of an existing use, structure, or sign, whether conforming or non-conforming; irregular or substandard shape or size; exceptional topographical features; or other extraordinary physical conditions peculiar to and inherent in the subject lot that amount to more than a mere inconvenience to the owner and that relate to or arise out of the lot rather than the personal situation of the current owner of the lot.
               C.   Not self-created. The aforesaid unique physical condition is not the result of any action or inaction of the owner or its predecessors in title and existed at the time of the enactment of the provisions from which a variance is sought or was created by natural forces or was the result of governmental action, other than the adoption of this chapter.
               D.   Denied substantial rights. The carrying out of the strict letter of the provision from which variance is sought would deprive the owner of the subject lot of substantial rights commonly enjoyed by owners of other lots subject to the same provision.
               E.   Not merely special privilege. The alleged hardship or difficulty is neither merely the inability of the owner or occupant to enjoy some special privilege or additional right not available to owners or occupants of other lots subject to the same provision, nor merely the inability of the owner to make more money from the use of the subject lot.
               F.   Ordinance and plan purposes. The variance would not result in a use or development of the subject lot that would not be in harmony with the general and specific purposes for which this chapter and the provision from which a variance is sought were enacted or the general purpose and intent of the Comprehensive Plan.
               G.   No other remedy. There is no means other than the requested variance by which the alleged hardship or difficulty can be avoided or remedied to a degree sufficient to permit a reasonable use of the subject lot.
               H.   Minimum required. The requested variance is the minimum measure of relief necessary to alleviate the alleged hardship or difficulty presented by the strict application of the ordinance.
         (b)   Additional Considerations for Flood Hazard Areas. The Board of Zoning Appeals shall, in weighing the appropriateness of a variance for Flood Hazard areas, consider all technical evaluations, all relevant factors, all standards specified in other sections of this chapter, as well as the following:
            1.   The danger to life and property due to flooding or erosion damage.
            2.   The danger that materials may be swept onto other lands to the injury of others.
            3.   The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner.
            4.   The importance of the services provided by the proposed facility to the community.
            5.   The necessity to the facility of a waterfront location, where applicable.
            6.   The availability of alternative locations for the proposed use which are not subject to flooding or erosion damage.
            7.   The compatibility of the proposed use with existing and anticipated development.
            8.   The safety of access to the property in times of flood for ordinary and emergency vehicles.
            9.   The expected height, velocity, duration, rate of rise, and sediment of transport of floodwaters at the site.
            10.   Costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, water systems, streets, and bridges.
         (c)   Every application for a land use variance shall be subject to the findings of fact as set out in I.C. 36-7-4-918.4 et seq. A variance from the land use of this chapter shall not be granted unless the Board of Zoning Appeals makes specific written findings of fact based directly on the particular evidence presented in the application materials and at the hearing which support conclusions that all of the standards and conditions imposed by recommendation of the Director of Planning and Development and the Technical Advisory Committee have been met. A land use variance may be approved only upon a determination in writing that:
            1.   the approval will not be injurious to the public health, safety, morals, and general welfare of the community;
            2.   the use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner;
            3.   the need for the variances arises from some condition peculiar to the property involved;
            4.   the strict application of the terms of the zoning ordinance will constitute an unnecessary hardship if applied to the property for which the variance is sought; and
            5.   the approval does not interfere substantially with the comprehensive plan.
   (F)   Supplemental Requirements for Variances in Flood Hazard Areas.
      (1)   Variances from the provisions of the Flood Hazard zoning district shall only be granted when the Board can make positive findings of fact based on evidence submitted at the hearing for the following:
         (a)   A showing of good and sufficient cause.
         (b)   A determination of failure to grant the variance would result in exceptional hardship as defined in § 159.016.
         (c)   A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud or victimization of the public, or conflict with existing laws or ordinances.
      (2)   No variance for a residential use within a floodway may be granted.
      (3)   Any variance for non-residential uses granted in a floodway will require prior approval of a permit from the Indiana Department of Natural Resources. Variances shall not be issued within any designated regulatory floodway if any increase in flood levels during the base flood discharge would result.
      (4)   Variances to the standards regulating building protection standards may be granted only when a new structure or substantial improvement is to be located on a lot of one half acre or less in size, contiguous to and surrounded by lots with existing structures constructed below the flood protection grade.
      (5)   Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.
      (6)   Variances may be granted for the reconstruction or restoration of any structure individually listed on the National Register of Historic Places or the Indiana State Register of Historic Sites and Structures. Such repair, rehabilitation, or restoration may be issued only upon a determination that the proposed construction will not preclude the structure’s continued designation as an “historic structure” and the variance is the minimum necessary to preserve the historic character and design of the structure.
      (7)   Variances may be issued for new construction, substantial improvements, and other development necessary for the conduct of a functionally dependent use.
      (8)   Any applicant that is granted a variance shall be given written notice, which will then be recorded against the deed to the property in the office of the County Recorder, specifying the following:
         (a)   The difference between the flood protection grade and the elevation to which the lowest floor is to be built.
         (b)   Stating that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation.
      (9)   The Floodplain Administrator shall maintain records of appeal actions and report any variance to the Federal Emergency Management Agency or the Indiana Department of Natural Resources upon request.
(Ord. 62-12-95, passed 1-22-96; Am. Ord. 23-06-10, passed 7-13-10; Am. Ord. 49-10-14, passed 10-28-14; Am. Ord. 32-07-19, passed 7-23-19; Am. Ord. 68-11-22, passed 11-9-22; Am. Ord. 44-10-23, passed 11-14-23)
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